Staff Reporters ? 

HIGH Court judge, Keketso Moahloli, will on Tuesday rule on the urgency of a bizarre application in which former police commissioner, Holomo Molibeli, is seeking an order to have the?Lesotho Times?permanently banned as a newspaper business. 

Mr Molibeli wants the?Lesotho Times?closed after it published a story implicating him in a M40 million fraud case at fuel company Tholo Energy.  

The story was entirely based on court proceedings. A newspaper cannot be legally sued for publishing court or parliamentary proceedings, no matter how defamatory the content.  

But that has not stopped Mr Molibeli through his lawyer, Advocate?Tekane Makaqachane, from demanding that the?Lesotho Times?be shut down completely so it does not “defame” him anymore.? He justifies his quest to have the newspaper closed by claiming that the?Lesotho Times?has been operating “illegally” without a certificate of registration from the Registrar-General’s office as “required” under the?Printing and Publications Act 1967.  

Ironically Advocate Makaqachane is the same lawyer who spearheaded a similar bizarre and incomprehensible application seeking the banning of another newspaper, the?Lesotho Tribune?after it published articles against his other client, Mergence Investment Managers. ?Judge Polo Banyane dismissed the case with costs on Friday. In her ruling delivered virtually, the judge alluded to the fact that a court cannot be asked to shut a newspaper business at the whim of a person or entity inconvenienced by its reporting. Her full written judgment will be delivered next week. ? 

Adv Makaqachane sparred with the?Lesotho Times’s?seasoned lawyer, Neil Fraser of Webber Newdigate before judge Moahloli.? Mr Fraser argued that Adv Makaqachane’s application was so badly drafted it warranted no relief of urgency.  

“They have absolutely no case against my client. So, there is nothing urgent to be adjudicated on. You cannot have urgency when you don’t have a case in both fact and law….,” Mr Fraser argued.  

Adv Makaqachane insisted the?Lesotho Times?was operating illegally with no registration certificate. It should thus not be allowed to continue operating “illegally”. The matter should thus be heard urgently. 

Mr Fraser argued that the absurdity of Adv Makaqachane’s application lay in the fact that he was actually seeking a final order – the shutting down of the newspaper – but then clothing it as an interim relief to be finalised latter after determination of the merits. 

“How does he expect a newspaper to be shut down in the meantime in the hope that it will be permanently shut after the merits are argued when it would already have been closed…?  

“And what if the newspaper subsequently wins on the merits…. Is he suggesting that the court must shut down the?Lesotho Times?now, then ask it to re-open at some other stage should it win on the merits…? That is surely absurd…” 

Mr Fraser’s forceful arguments latter led Adv Makaqachane to appear to change?tack?and confine himself to arguing that he was only asking for the matter to be heard urgently, and for the court to declare as such. But not before he had argued for the closure of the?Lesotho Times. 

“The fact is that they (Lesotho Times) have no certificate of registration. Section 7 of the Printing and Publications Act 1967?requires such a certificate.? The publication?(Lesotho Times)?has no authority to publish….” Adv Maqakachane contended. 

“An insurance company must be registered first with the regulator and be issued with a certificate of registration to operate, in this case by the Central Bank of Lesotho… This court has already established that precedent in the Lion Insurance case which stopped its owner,?Thebe-ea-khale?from selling insurance products…  

“Similarly, this law is very clear that a publisher must have a certificate of registration to publish. The?Lesotho Times?cannot thus be continued to publish and continue defaming my client as he won’t have a remedy in due course.”  

However, the judge appeared to have struggled with that reasoning. 

“What do you mean you won’t get a remedy in due course when you can sue later for defamation,” Judge Moahloli asked Adv Maqakachane, explaining why he had difficulties with a case of defamation being treated on an urgent basis.  

Adv Makaqachane retorted the idea was to stop the?Lesotho Times?from continuing to defame his client. 

“You can still sue and get damages if they have indeed defamed your client…. And if they continue defaming your client as you claim, then it will only increase the quantum of damages you can claim…. So why should you be worried about urgency…?” the judge asked. 

Adv Maqakachane then argued that everyone was entitled to seek a relief at a time when an actual infringement of their rights has occurred and not at some later stage.  

“They are continuing to publish and they must stop publishing because they are in violation of the Act.? If they are not stopped, they will continue to publish illegally and have carte blanche to character assassinate and violate my client’s rights….” 

He then asked for a?rule nisi?to be issued to close the?Lesotho Times?in the meantime.  

A rule nisi is an order by a court, at the instance of a party, calling upon another party or parties to show cause on a stipulated date before that court why relief, as claimed, should not be granted. 

The issue of a?rule nisi?sparked intense debate with the judge asking to understand why Adv Maqakachane was asking him to issue one. 

“So there are no actual interim reliefs you are seeking……?” he asked. 

“We are saying the matter be expedited and a?rule nisi?be issued….,” responded Adv Maqakachane. 

Mr Fraser then waded in and slated Adv Maqakachane for not understanding what a?rule nisi?was.? He was seeking the rule in a case in which it was not applicable at all.  

“A rule nisi is a protection of rights…. What is the situation he is asking to be protected here…? You don’t get a rule nisi if you are not protecting something…. What is being protected?” Mr Fraser questioned, accusing Adv Maqakachane of also trying to create urgency where it was not warranted.  

He took umbrage with the quest to shut the newspaper. 

“The media has a constitutionally guaranteed right to inform the public …. To simply say it must be shut down at a whim because someone is not happy with content is not only highly prejudicial, it’s ridiculous….,” Mr Fraser contended.  

Judge Moahloli concurred with Mr Fraser that Adv Maqakachane was misconstruing a?rule nisi. 

“I don’t consider a rule nisi to be an interim relief. A?rule nisi?is made when someone wants to protect a status quo…. pending the adjudication and determination of final reliefs sought…I don’t know why you are asking me to issue a?rule nisi….?”  

It seems Adv Maqakachane had hoped that – if issued – the rule would then able him to get the closure of the?Lesotho Times?in the meantime.  

After they had sparred on the meaning of the?rule nisi,?the judge asked the lawyers to confine themselves to the issue of urgency only, describing it as the “elephant in the room”. 

That means Adv Maqakachane’s bid to have the?Lesotho Times?closed forthwith because it was operating “illegally” pending determination of the merits of his case against the newspaper is dead in the water for now.  ? 

Mr Fraser told the judge Molibeli’s entire case was built on sand and could therefore not be treated as urgent. He refenced the judge to the paperwork he had filed confirming that the?Lesotho Times was properly registered in terms of the complained of Act. 

The difficulties of Adv Maqakachane’s bids to have various newspapers shut down on the basis of an ancient law – that is nearly 60 years old- will likely encounter problems because the office of the Registrar-General’ office, which he claims must issue certificates to publishers does not exist. ? 

Even Judge Moahloli himself said he was not aware of the existence of such an office and sought help in understanding it despite his long career on the bench.  

Adv Makaqachane cannot expect to sue publishers over an office that is non-existent. However, Mr Fraser produced confirmation that the?Lesotho Times?was registered under the?Printing and Publications Act 1967 as per the relevant ministry.?